Matrimonial Agreements

By J. Douglas Barics
Nassau and Suffolk Divorce Lawyer

Matrimonial agreements are simply contracts between spouses or ex spouses.

These agreements include the following:

Prenuptial agreements
Post nuptial agreements
Separation agreements
Stipulations of settlement
Modifications to any prior agreement

Certain issues require mandatory language that cannot be waived for it to be enforceable. These include:

Any agreement involving child support
Any agreement involving spousal support

When other issues are settled, the language of the agreement is critical to define each person's rights. Any omission on the following issue can be viewed as a waiver

Equitable distribution
Pension rights as it flows from equitable distribution
Rights to 401(k), IRA or other tax deferred accounts as they flow from equitable distribution

Putting these all together means that basic contract drafting is the starting point. From there, the mandatory language required by DRL 236 B (3) is required, as well as the mandatory language for both child support and spousal maintenance. The inclusion of this language is only the starting point to insure it is enforceable.

From there, making sure that all aspects of equitable distribution are spelled out clearly, as equitable distribution cannot be raised after judgment without vacating the entire judgment.

Good practice in drafting an agreement involves showing the work how numbers are arrived at whenever possible. The reason is if there is a mistake in the agreement that nobody catches and the parties cannot resolve them, the work allows the court to revise the agreement if an action to reform the agreement is commenced.

Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation

If you have have additional questions, contact our office to learn about your legal options in reaching and drafting an agreement, challenging an agreement by motion or plenary action, or defending a challenge to an agreement. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.

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For a free phone case consultation or to schedule an office meeting, call 631-864-2600.

Overview

Matrimonial actions are defined by statute; the most common being divorce, annulment, and a declaration of a void marriage. For every matrimonial action all ancillary relief is available.

Divorce

Divorce is the most common matrimonial action. Grounds are no longer the primary focus, the emphasis is resolving the financial matters and custody.

Annulments

An annulment is a matrimonial action seeking to declare a valid marriage void. All ancillary relief is available. All annulment grounds are fault based, and require a higher level of proof to establish.

Void Marriages

Void marriages are those which are void from inception. An action requesting a declaratory judgment is a matrimonial action and all ancillary relief is available.

Matrimonial Appeals

Matrimonial appeals requires a combination of matrimonial law and appellate law. A lack of understanding of either can prove fatal in an appeal.

Equitable Distribution

Equitable distribution authorizes the matrimonial court to award all marital property to either spouse, without regard to title.

Maintenance

Maintenance is the support payments from one spouse to another. Since 2016 the amount is determined by a formula.

Child Support

Parents have an obligation to support their children, and the parent with residential custody will be awarded child support. The amount of support is determined by a formula.

Custody

When parents cannot decide where their children shall live and how to make decisions involving them, the court will decide custody based on the bests interests of the child.

Counsel Fees

Awards of counsel fees to the non monied spouse is available in all matrimonial actions. Awards can be made during the case and at the conclusion.

Expert Fees

Awards of expert fees to the non monied spouse is available in all matrimonial actions.

Exclusive Occupancy

The court is authorized to award exclusive occupancy to one party, giving them exclusive use and possession of a home for a set period of time during or after a matrimonial action.

Pendente Lite Motions

Pendente lite motions used when a spouse in a matrimonial action needs needs immediate court assistance on something that cannot wait until trial or a final settlement.

Same Sex Divorce

Same sex divorces present unique issues such as when the couple got married before it was recognized by law, or when couples used work arounds for their marital property.

Modification of Child Support

Child support may be modified based on a change of income, a change of circumstances, or if three years have passed since the last modification. COLA adjustments to child support orders can also be obtained.

Modification of Maintenance

Maintenance is subject to modification or early termination but the circumstances when these can occur are less common than in the past.

High Net Worth Divorce

High net worth divorces often involve non typical financial holdings that require special care in determining their disposition.

Marital Agreements

Marital agreements are contractual agreements between future, existing, or prior spouses who decide to resolve their own issues instead of letting a court decide for them.

Complex Challenges

Complex challenges in matrimonial actions can range from complex financial issues, inter-state or international issues, or procedural issues which deprived one spouse from their day in court.